COURT OF APPEALS, STATE OF COLORADO Court Address: 101 West Colfax Avenue, Suite 800, Denver, Colorado 80202 ___________________________________ Appeal from the Arapahoe County District Court, The Honorable Charles M. Pratt Case No: 08-CV-431, Division 404, ___________________________________ Plaintiff-Appellant: MICHELLE L. MEDINA v. Defendants-Appellees: KAREN K. DARRICAU, M.D. AND FORREST BRENT KEELER, M.D. ___________________________________ Deanne McClung, #27451 COOPER & CLOUGH, P.C. 1512 Larimer Street, Suite 600 Denver, Colorado 80202-1621 Phone: (303) 607-0077 Fax: (303) 607-0472 E-Mail: dmcclung@cooper-clough.com

COURT USE ONLY _____________________________ Case Number: 09-CA-2243

DEFENDANT-APPELLEE, KAREN DARRICAU, M.D.’S ANSWER BRIEF

Appeal from Arapahoe County District Court Case No: 08-CV-431

Honorable Charles M. Pratt

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The brief complies with C.A.R. 28(g). Choose one: X It contains 9396 words. ____ It does not exceed 30 pages. The brief complies with C.A.R. 28(k). For the party raising the issue: It contains under a separate heading (1) a concise statement of the applicable standard of appellate review with citation to authority; and (2) a citation to the precise location in the record (R. ___, p. ____), not to an entire document, where the issue was raised and ruled on. X For the party responding to the issue: It contains, under a separate heading, a statement of whether such party agrees with the opponent’s statements concerning the standard of review and preservation for appeal, and if not, why not.

s/ Deanne C. McClung _________________________ Deanne C. McClung COOPER & CLOUGH, P.C. 1512 Larimer Street, Suite 600 Denver, Colorado 80202 (303) 607-0077

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................................... i 

I.  STATEMENT OF ISSUES .................................................................................................1 

1.  The Trial Court Appropriately Denied Plaintiff’s C.R.C.P. 59 Motion for Judgment Notwithstanding Verdict and/or for New Trial. ...............................................................................................1 

2.  The Trial Court did not Err with Regard to the Jury Instructions because the Instructions Given were Accurate Statements of the Law, and the Court’s Decisions were not Manifestly Arbitrary, Unreasonable or Unfair. ............................................1 

3.  The Trial Court Appropriately Permitted Defendants to Amend Their Answers. ................................................................................1 

4.  Evidence Presented to the Jury at Trial Regarding Settlement does not Entitle Plaintiff to a New Trial. ...................................1 

5.  This Court should not Consider Issue Raised by Plaintiff Regarding Medical Bills. .............................................................................1 

6.  The Trial Court Appropriately Awarded Costs to Dr. Darricau as the Prevailing Party. .................................................................1 

II.  STATEMENT OF THE CASE ............................................................................................1 

III.  STATEMENT OF FACTS ..................................................................................................4 

IV.  SUMMARY OF ARGUMENT ...........................................................................................6 

V.  ARGUMENT .......................................................................................................................7 

A.  THE TRIAL COURT APPROPRIATELY DENIED PLAINTIFF’S C.R.C.P. 59 MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT AND/OR FOR NEW TRIAL ........................7 

1.  Standard of Review; Preservation ................................................................7 

2.  The Evidence Supported the Jury’s Verdict that Dr. Darricau was not Negligent. ........................................................................8 

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3.  Application of Captain of the Ship Doctrine did not Entitle Plaintiff to a Judgment Notwithstanding Verdict under the Circumstances of this Case. .......................................................................12 

4.  Jury Verdict of No Causation Renders Harmless any Perceived Error Regarding Negligence. ....................................................15 

5.  Plaintiff is not Entitled to a Judgment Notwithstanding Verdict, as she Failed to Meet her Burden to Establish Causation....................................................................................................16 

B.  THE TRIAL COURT DID NOT ERR WITH REGARD TO THE JURY INSTRUCTIONS BECAUSE THE INSTRUCTIONS GIVEN WERE ACCURATE STATEMENTS OF THE LAW, AND THE COURT’S DECISIONS WERE NOT MANIFESTLY ARBITRARY, UNREASONABLE, OR UNFAIR. ..............................................18 

1.  Standard of Review; Preservation ..............................................................18 

2.  Jury Instructions Regarding Burden of Proof and Res Ipsa Loquitur were Properly Given and Caused No Prejudice to Plaintiff. .....................................................................................................19 

3.  The Court Properly Rejected Plaintiff’s Ochoa Instruction which Misstated Law. ................................................................................21 

4.  The Court Properly Instructed the Jury Regarding Vicarious Liability and Captain of the Ship. .............................................22 

5.  Jury Instructions Regarding Comparative and Nonparty Negligence were Proper and Caused No Prejudice to Plaintiff. .....................................................................................................24 

6.  Jury Instructions Regarding Standard of Care and Expert Testimony were Appropriate and Caused No Prejudice to Plaintiff. .....................................................................................................26 

7.  The Jury Instructions were Proper. ............................................................27 

C.  THE TRIAL COURT APPROPRIATELY PERMITTED DEFENDANTS TO AMEND THEIR ANSWERS. .............................................28 

1.  Standard of Review; Preservation ..............................................................28 

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2.  The Trial Court did not Abuse Its Discretion in Permitting Defendants to Amend Their Answers to Add the Affirmative Defense of Release. ................................................................28 

D.  EVIDENCE PRESENTED TO THE JURY AT TRIAL REGARDING SETTLEMENT DOES NOT ENTITLE PLAINTIFF TO A NEW TRIAL. .........................................................................31 

1.  Standard of Review; Preservation ..............................................................31 

2.  Plaintiff Failed to Make a Contemporaneous Objection to the Admission of the Settlement Documents. ............................................31 

3.  Evidence Regarding Settlement with The Medical Center of Aurora and its Agents was Admissible under Greenemeier and Caused No Prejudice to Plaintiff. ..................................32 

4.  Evidence Regarding the Settlement Agreement was Admissible to Show the Fact of Settlement and was Relevant to a Factual Question of Plaintiff’s Intent with Respect to Release. ....................................................................................35 

E.  THIS COURT SHOULD NOT CONSIDER ISSUEs RAISED BY PLAINTIFF REGARDING MEDICAL BILLS. ...................................................37 

1.  Standard of Review; Preservation ..............................................................37 

2.  The Trial Court’s Ruling was Harmless Error. ..........................................38 

3.  This Court should not Render Advisory Opinion Regarding Potential Future Rulings of a Trial Court. .................................................39 

4.  The Reasonable Value of Medical Expenses is an Issue for the Trier of Fact to Determine. ..................................................................40 

F.  THE TRIAL COURT APPROPRIATELY AWARDED COSTS TO DR. DARRICAU AS THE PREVAILING PARTY. ......................................41 

1.  Standard of Review; Preservation ..............................................................41 

2.  Plaintiff Presented No Argument in Support of Her Contention that Costs were Improperly Awarded. ....................................41 

VI.  CONCLUSION ..................................................................................................................43 

TABLE OF AUTHORITIES

Cases 

Adams v. Leidholdt, 38 Colo. App. 463, 563 P.2d 15, 19 (1976) ....................... 8, 13

Alessi v. Houge, 689 P.2d 649, 650 (Colo.App. 1984) ............................................ 17

American Family Mutual Ins. Co. v. Dewitt, 216 P.3d 60, 65 (Colo.App. 2008) .................................................................................................. 31

Arnold v. Colo. State Hosp., 910 P.2d 104, 107-8 (Colo.App. 1995) ..................................................................................................................... 30

Beadles v. Metayka, 135 Colo. 366, 311 P.2d 711, 714 (1957) ....................... 13, 23

Beil v. Alcott, 876 P.2d 60, 64 (Colo.App. 1993) .................................................... 42

Bernardi v. Community Hospital Assn. 443 P.2d 708, 715 (Colo. 1968) .......................................................................................................... 14

Bilawsky v. Faseehudin, 916 P.2d 586, 589 (Colo.App. 1995) ................................. 8

Browns v. Lutin, 16 Colo. App 263, 64 P. 674, 674 (1901) .................................... 30

Bruckman v. Pena, 487 P.2d 566, 568 (Colo.App. 1971) ....................................... 16

Burcham v. Burcham, 1 P.3d 756, 757 (Colo.App. 2000) ....................................... 39

Burt v. Beautiful Savior Lutheran Church of Broomfield, 809 P.2d 1064, 1070 (Colo.App. 1990) ............................................................... 34, 37

Coleman v. United Fire and Cas. Co., 767 P.2d 761, 764 (Colo.App. 1988) .................................................................................................. 33

Colorado Compensation Auth. v. Jones, 131 P.3d 1074, (Colo.App. 2005) .................................................................................................. 29

Cosgrove v. Wal-Mart Stores, Inc., 2010 WL 2521744 (Colo.App. 2010) .................................................................................................. 40

ii

County Road Users Ass'n v. Board of County Com'rs of County of Archuleta, 987 P.2d 861, 864 (Colo.App. 1998) ............................................. 39

Denver City Tramway Co. v Brumley, 51 Colo. 251, 116 P. 1051 (1911) ........................................................................................................... 18

Denver Consol. Tramway Co. v. Riley, 14 Colo. App. 132, 59 P. 476, 477 (1899) .................................................................................................... 30

Dunlap v. Long, 902 P.2d 446, 447 (Colo.App. 1995) ..................................... 16, 38

Dworak v. Olson Constr. Co., 191 Colo. 161, 551 P.2d 198 (1976) .................................................................................................................... 29

Fields v. Yusuf, 144 Cal.App.4th 1381, 51 Cal.Rpter.3d 277 (Cal.Ct.App. 2006) ............................................................................................... 14

Garhart ex rel. Tinsman v. Columbia/HealthOne, L.L.C., 95 P.3d 571, 590-91(Colo. 2004) .............................................................................. 34

Gray v. Houlton, 671 P.2d 443, 444 (Colo.App. 1983) ........................................... 38

Great West Food Packers, Inc. v. Longmont Foods Co., Inc., 636 P.2d 1331, 1333 (Colo.App. 1981) ............................................................... 40

Great Western Sugar Co. v. Northern Natural Gas Co., 661 P.2d 684, 696 (Colo.App. 1982) .......................................................................... 40

Greenemeier v. Spencer, 719 P.2d 710 (Colo. 1986) ................. 6, 32, 33, 34, 37, 44

Hall v. Frankel, 190 P.3d 852, 858 (Colo.App. 2008) ............................................ 31

Harris Group, Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo.App. 2009) ..................................................................................... 18, 19, 22

Harris v. Miller, 438 S.E.2d 731 (N.C. 1994) ......................................................... 13

Harsh v. Cure Feeders, L.L.C., 116 P.3d 1286, 1284 (Colo.App. 2005) .................................................................................................. 40

Hart v. Schwab, 990 P.2d 1131, 1135 (Colo.App. 1999) ........................................ 32

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Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1251 (Colo. 1994) ................................ 18

In re Michelle Medina, U.S. Bankruptcy Court No 09-37347-HRT (D.Colo.) ...................................................................................................... 43

Kaiser Foundation Health Plan v. Sharp 741 P.2d 714 (Colo. 1987) .................................................................................. 16

Krane v. Saint Anthony Hosp. Sys., 738 P.2d 75, 76-77 (Colo.App. 1987) ........................................................................................... 13, 23

Landsberg v. Hutsell, 837 P.2d 205, 209 (Colo.App. 1992) ...................... 32, 33, 34

Lewis v. Physicians Ins. Co., 627 N.W.2d 484 (Wis. 2001).................................... 13

Machol v. Sancetta, 924 P.2d 1197, 1199 (Colo.App. 1996) .................................. 17

Martin v. Minnard, 862 P.2d 1014 (Colo.App. 1993) ............................................. 38

Miller v. Van Newkirk, 628 P.2d 143, 145 (Colo.App. 1980) ...............................8, 9

Mitchell v. Ryder, 20 P.3d 1229, 1234 (Colo.App. 2000) ....................................... 42

Mudd v. Dorr, 574 P.2d 97 (Colo.App. 1997) ............................................ 20, 26, 27

Mullins v. Kessler, 83 P.3d 1203 (Colo.App. 2003) ................................................ 42

Nelson v. Hammon, 802 P.2d 452, 454 (Colo. 1990) ................................................ 7

Ochoa v. Vered, 212 P.3d 963 (Colo.App. 2009) 9, 12, 13, 14, 20, 21, 22, 23, 29, 30

Oliver v. Amity Mut. Irrigation Co., 994 P.2d 495, 994 (Colo.App. 1999) .................................................................................................. 15

Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268 (1967) ............................................................................................................. 41

People v. Bass, 155 P.3d 547, 552 (Colo.App 2006) .............................................. 30

People v. Sandoval, 709 P.2d 90, 92 (Colo.App 1985) ........................................... 30

Pinell v. McCrary, 849 P.2d 848, 851 (Colo.App. 1992) ........................................ 16

iv

Polk v. Dist. Ct., 849 P.2d 23, 25 (Colo. 1993) ....................................................... 28

Poudre Valley Rural Elec. Ass’n. v. City of Loveland, 807 P.2d 547 (Colo. 1991) ................................................................................................... 39

Robinson v. City and County of Denver, 30 P.3d 677 (Colo.App. 2000) .................................................................................................. 19

Spoor v. Serota, 852 P.2d 1292, 11295 (Colo.App. 1992) ................................. 9, 26

Steidinger v. Hilton, Colorado Court of Appeals, No. 07CA0847, August 28, 2008 ................................................................................ 40

Steiger v. Burroughs, 878 P.2d 131 (Colo.App. 1994) ............................................ 41

Stumps v. Gates, 777 F. Supp. 808, 824, aff’d 986 F.2d 1429 (D. Colo. 1991) ..................................................................................................... 16

Teiken v. Reynolds, 904 P.2d 1387, 1389 (Colo.App. 1995) ..................................... 8

Thomas v. Raleigh Hosp., 358 S.E.2d 222 (W.Va 1987) ........................................ 13

Trucker v. Volunteers of Am., 211 P.3d 708 (Colo.App. 2008) .............................. 40

True Temper Corp. v. CF&I Steel Corp., 601 F.2d 495 (10th Cir. 1979) .............................................................................................................. 42

Voight v. Colo. Mountain Club, 819 P.2d 1088, 1091 (Colo.App. 1991) .................................................................................................... 8

Waneka v. Clyncke, 134 P.3d 492 (Colo.App. 2005) aff’d 105 P.3d 1072 (Colo. 2007) ........................................................................................ 19

Weeks v. City of Colorado Springs, 928 P.2d 1346, 1349 (Colo.App. 1996) .................................................................................................. 33

Wesley v. United Svcs Auto. Ass’n, 694 P.2d 855, 857 (Colo.App. 1984) .................................................................................................... 8

Western Fire Truck, Inc. v. Emergency One, Inc., 134 P.3d 570, 578 (Colo.App. 2006) ............................................................................................. 7

v

Young v. Carpenter, 694 P.2d 861, 863 (Colo.App. 1984) ..................................... 14

Statutes 

C.R.S. § 13-16-105 .................................................................................................. 42

C.R.S. § 13-16-122 .................................................................................................. 42

C.R.S. § 13-50.5-105(1)(a) ...................................................................................... 29

C.R.S. § 13-64-101 .................................................................................................. 33

C.R.S. § 13-64-401 .................................................................................................... 8

Other Authorities 

CJI-Civ. 4th 3:1. ................................................................................................. 16, 29

CJI-Civ. 4th 9:2 .................................................................................................. 16, 17

Restatements (Second ) of Agency § 217A (1958) ................................................. 30

Rules 

C.A.R. 28(k) .................................................................................... 18, 19, 31, 37, 41

C.R.C.P Rule 54(d) .................................................................................................. 42

C.R.C.P. 15(a) .......................................................................................................... 28

C.R.C.P. 26(a)(2) ....................................................................................................... 2

C.R.C.P. 51 .............................................................................................................. 19

C.R.C.P. 59 ............................................................................................................1, 7

C.R.C.P. 59(e) ............................................................................................................ 7

C.R.C.P. 59(j) ............................................................................................................. 4

C.R.E. 103(a)(1) ....................................................................................................... 31

C.R.E. 301 ........................................................................................................... 9, 10

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C.R.E. 401 ................................................................................................................ 37

C.R.E. 402 ................................................................................................................ 37

C.R.E. 403 ................................................................................................................ 37

I. STATEMENT OF ISSUES

1. The Trial Court Appropriately Denied Plaintiff’s C.R.C.P. 59 Motion for

Judgment Notwithstanding Verdict and/or for New Trial.

2. The Trial Court did not Err with Regard to the Jury Instructions because

the Instructions Given were Accurate Statements of the Law, and the Court’s

Decisions were not Manifestly Arbitrary, Unreasonable or Unfair.

3. The Trial Court Appropriately Permitted Defendants to Amend Their

Answers.

4. Evidence Presented to the Jury at Trial Regarding Settlement does not

Entitle Plaintiff to a New Trial.

5. This Court should not Consider Issue Raised by Plaintiff Regarding Medical

Bills.

6. The Trial Court Appropriately Awarded Costs to Dr. Darricau as the

Prevailing Party.

II. STATEMENT OF THE CASE

On or about February 25, 2008, Plaintiff filed her Complaint. (Record

CD pp. 2-6.) In that Complaint, Plaintiff asserted two separate claims for relief

against Dr. Darricau, a negligence claim and a res ipsa loquitur claim. On or about

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March 18, 2008, Dr. Darricau filed a Motion to Dismiss Plaintiff’s claim of res

ipsa loquitur. (Record CD pp. 23-27.) That Motion was granted by the Court.

(Record CD pp. 45-47.) Defendant Dr. Darricau filed her Answer on May 2, 2008.

(Record CD pp. 48-51.) She filed an Amended Answer on May 6, 2008. (Record

CD pp. 52-56.)

On or about January 13, 2009, Plaintiff filed her Expert Witness Disclosures.

(Record CD pp. 244-45.) Plaintiff’s sole expert witness, pursuant to C.R.C.P.

26(a)(2), was Joseph Ronaghan, M.D., a general surgeon from Greenville, Texas.

Dr. Ronaghan’s opinions regarding Dr. Darricau’s negligence were two-fold.

First, he asserted that the retention of the surgical sponge represented a deviation in

the standard of care. Second, he opined that the post-operative care and treatment

was negligent, representing a negligent delay in diagnosis. (Record CD pp. 2443

and 1830.) Dr. Darricau disclosed her expert witnesses on February 11, 2009.

(Record CD pp. 307-330.)

This case went to trial on June 15-22, 2009. (Transcript CD 6/15-22/2009.)

During this six-day trial, the jury heard extensive evidence regarding the surgical

care and treatment provided by Dr. Darricau and Dr. Keeler and the surgical

procedures that occurred on September 1, 2006. (Transcript CD 6/16/2009 at

11:10-162:13, 6/17/2009 at 5:13-134:13, 6/18/2009 at 145:15-202:18, 6/19/2009 at

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89:19-125:11, 6/19/2009 at 171:10-222:25, 6/19/2009 at 227:1-236:24.) The jury

also heard testimony from witnesses regarding the sponge count process and the

responsibilities of the hospital nurses in this process. (Transcript CD 6/15/2009 at

82:5-141:9, 6/19/2009 at 33:8-82:21.) The jury also heard evidence regarding the

care and treatment Dr. Darricau provided in the post-operative period, the

subsequent surgery performed by Dr. Darricau on December 13, 2006 and

Dr. Darricau’s care and treatment thereafter. (Transcript CD 6/18/2009 at 145:15-

202:18, 6/19/2009 at 89:19-125:11.) The jury heard testimony regarding

Ms. Medina’s claimed damages, her post-operative course and post-operative

infections. After the close of Plaintiff’s evidence, counsel for Dr. Darricau and

counsel for Dr. Keeler made directed verdict motions, which the Court took into

consideration. (Transcript CD 6/19/09 at 129:13-166:15.) The Defendants also

made directed verdict motions on damages. (Transcript CD 6/19/09 at 243:13-

244:23.) The Plaintiff did not make any motions for directed verdict after the close

of Defendants’ evidence.

On June 22, 2009, the Trial Court granted Dr. Keeler’s Motion for Directed

Verdict, but denied Dr. Darricau’s directed verdict motions. (Transcript CD

6/22/09 at 3:4-20:11.) Therefore, the case against Dr. Darricau went to the jury.

At the conclusion of the evidence, the jury returned a verdict in Defendant

4

Dr. Darricau’s favor, finding no negligence and no causation. (Record CD

pp. 2066.) The Court entered judgment in favor of Dr. Darricau on that same date.

(Record CD at pp. 1161 and 2222-23.) The Court also awarded Dr. Darricau’s

costs. (Record CD pp. 2230-2231.)

On July 21, 2009, Plaintiff filed her Motion for Judgment Notwithstanding

Verdict and/or For New Trial. (Record CD pp. 1209-23.) That Motion was denied

by application of C.R.C.P. 59(j). Plaintiff then filed her Notice of Appeal on

October 28, 2009. (Record CD pp. 1421-28.) Plaintiff’s Opening Brief argues

essentially the same issues set forth in her unsuccessful JNOV Motion.

III. STATEMENT OF FACTS

In her Complaint, Plaintiff Michelle Medina averred that Karen Darricau,

M.D. and Brent Keeler, M.D. were negligent in the surgical care and treatment

provided to her. (Record CD pp. 2-6.) Plaintiff’s claims against Dr. Darricau stem

from a September 1, 2006 surgical procedure in which Dr. Darricau removed three

superficial endometriomas from Ms. Medina’s previous C-section scar line.

(Record CD pp. 1794-95.) When Ms. Medina’s right lateral incision developed

recurring superficial infections, in the months following the initial surgery, Dr.

Darricau elected to perform a second, exploratory surgery at the site of that

incision. (Record CD pp. 1806-7.) She identified and excised a small mass of

5

inflammatory tissue, which was later found to contain a small piece of gauze, also

referred to as a surgical sponge. (Record CD pp. 1808.) Both surgeries took place

at The Medical Center of Aurora (TMCA).

The finding of the retained sponge was a surprise to Dr. Darricau and

Dr. Keeler. (Transcript CD 6/17/09 at 124:21-125:7; 6/16/09 at 147:8-148:5. ) At

the end of the procedure, it was reported to the surgeons that the sponge count was

correct. TMCA has a policy regarding sponge counts, requiring counts to be

performed by hospital staff. The initial count was performed by hospital nurse,

Brent Boynton, and scrub tech, Jessie Velasquez, at a time prior to when the

procedure was performed and before either surgeon was present in the O.R. Prior

to closure of a surgical wound, Dr. Darricau thoroughly inspects it for foreign

objects. (Transcript CD 6/17/09 at 76:25-77:18.) At the end of the surgery,

Boynton and Velasquez performed a second sponge count which was found to be

correct. (6/15/09 at 133:21-134:5 .) At the closure of the skin, a third count was

performed and was again found to be correct. (Transcript CD 6/15/09 at 133:24-

134:8.) The correct counts were relayed to Dr. Darricau and Dr. Keeler.

(Transcript CD 6/17/09 at 107:6-108:9; 6/16/09 at 147:19-148:5.)

6

Thereafter, Plaintiff asserted a claim against TMCA. Plaintiff settled her

claim with TMCA. (Record CD pp. 1872-73.) Then Plaintiff filed her Complaint

against the Defendant-surgeons.

IV. SUMMARY OF ARGUMENT

Plaintiff had a full and fair opportunity to present evidence regarding her

claims at trial. At the conclusion of the case, the jury found Dr. Darricau not

negligent and found no causation. The evidence, viewed in the light most

favorable to Dr. Darricau, supported the jury’s verdict regarding both negligence

and causation. Therefore, Plaintiff was not entitled to a Judgment Notwithstanding

Verdict and the Court did not err in not granting Plaintiff’s Motion.

The Trial Court properly instructed the jury in this matter. The jury

instructions given were reasonable and appropriate in light of the evidence and

issues presented during the course of trial. The Trial Court also appropriately

permitted Defendant Dr. Darricau to amend her Answer to add the defense of

release.

Finally, as the jury was appropriately informed of the fact of settlement with

The Medical Center of Aurora and its employees under Greenemeier, evidence of

the redacted settlement documents presented to the jury and later removed from

7

the jury’s consideration did not prejudice the Plaintiff . Therefore, Defendant

Dr. Darricau respectfully requests that Plaintiff’s Appeal be denied.

V. ARGUMENT

A. THE TRIAL COURT APPROPRIATELY DENIED PLAINTIFF’S C.R.C.P. 59 MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT AND/OR FOR NEW TRIAL

1. Standard of Review; Preservation Defendant Dr. Darricau does not disagree with Plaintiff’s statement that the

standard of review for a Judgment Notwithstanding Verdict (JNOV) motion is

a reasonableness standard, but supplements that statement as follows:

A motion for JNOV should only be granted if the evidence, viewed in the

light most favorable to the non-moving party, is such that no reasonable person

could reach the same conclusion as the jury. Western Fire Truck, Inc. v.

Emergency One, Inc., 134 P.3d 570, 578 (Colo.App. 2006). In considering the

evidence, the Court must draw every legitimate inference in favor of the party

opposing the motion for judgment notwithstanding verdict. Nelson v. Hammon,

802 P.2d 452, 454 (Colo. 1990).

Pursuant to C.R.C.P. 59(e), Plaintiff bears the burden of proving either

insufficiency of evidence as a matter of law or that no genuine issue of any

material fact exists and that she is entitled to judgment as a matter of law. In

8

addressing a JNOV motion, the Trial Court should not evaluate the evidence as

would an additional juror, but rather the Court must review the facts and inferences

in a light which most favorably supports the jury’s verdict. Voight v. Colo.

Mountain Club, 819 P.2d 1088, 1091 (Colo.App. 1991). The Court may not

consider the weight of the evidence nor the credibility of the witnesses. Wesley v.

United Svcs Auto. Ass’n, 694 P.2d 855, 857 (Colo.App. 1984).

2. The Evidence Supported the Jury’s Verdict that Dr. Darricau was not Negligent.

To establish negligence in a medical malpractice case, the plaintiff must

generally prove, by competent expert testimony, that the defendant-physician

departed from the applicable standard of care required of a physician in the

defendant's own specialty. Miller v. Van Newkirk, 628 P.2d 143, 145 (Colo.App.

1980); Teiken v. Reynolds, 904 P.2d 1387, 1389 (Colo.App. 1995). The mere fact

that an injury has occurred is not evidence of negligence on the part of the

physician. Adams v. Leidholdt, 38 Colo. App. 463, 563 P.2d 15, 19 (1976). To

be competent, the expert testimony must be from "a licensed physician who is

knowledgeable concerning the standard of care in the medical specialty of the

defending physician." Bilawsky v. Faseehudin, 916 P.2d 586, 589 (Colo.App.

1995); C.R.S. § 13-64-401.

9

The only exception to this rule requiring competent expert medical

testimony is the doctrine of res ipsa loquitur . “Res ipsa loquitur is a rule of

evidence which defines the circumstances under which a presumption of

negligence will arise.” Spoor v. Serota, 852 P.2d 1292, 11295 (Colo.App. 1992).

The presumption arises when some unexplained event creates a prima facie case of

negligence. Id. If it cannot be inferred that the injury normally does not occur

without negligence, expert testimony on that issue is necessary before res ipsa

loquitur can be applied. Miller, 628 P.2d at 146.

Plaintiff argues that she was entitled to a JNOV because the doctrine of res

ipsa loquitur shifted the burden of proof to the Defendant-physicians and “neither

defendant established how the sponge was left inside Medina…was not surgeon

negligence.” See Plaintiff’s Opening Brief at p. 22. Plaintiff cites Ochoa v. Vered,

212 P.3d 963 (Colo.App. 2009) in support of her argument. However, pursuant to

C.R.E. 301, a presumption does not shift the burden of proof to the party against

whom it is directed. The Court in Ochoa recognized the tension between C.R.E.

301 and res ipsa loquitur and held that the Court did not abuse its discretion by

giving a res ipsa loquitur instruction in that case. Id. at 970. Clearly, the issue of

whether the doctrine of res ipsa loquitur is excepted from the operation of C.R.E.

10

301 is not settled. Nevertheless, the Trial Court gave a res ipsa instruction in this

case. (Record CD p. 2013.)

At trial, Dr. Darricau presented substantial evidence that she was, in fact, not

negligent with respect to the retained sponge. The evidence presented at trial,

when viewed in the light most favorable to Dr. Darricau as the non-moving party,

supported the jury’s verdict.

Evidence was presented by all parties as to the process of the sponge count.

The jury learned from TMCA nurse, Brent Boynton, R.N., that TMCA requires its

circulating nurse and scrub tech to perform a series of sponge counts in each and

every surgery. That policy was admitted into evidence as Exhibit N. (Record CD

pp. 1863-64.) That policy requires TMCA circulating nurse and scrub tech to

perform an initial count of sponges before the beginning of the case. This initial

count occurs at a time when neither the physician nor the patient is in the room.

(Transcript CD 6/18/09 at 167:4-17.) Mr. Boynton testified that it is the role of the

nurse and scrub tech to initiate counts. (Transcript CD 6/15/09 at 116:7-25.)

Mr. Boynton also testified that the TMCA Operating Room Counts Policy

requires a second count be performed at the end of the procedure but before the

skin incision is closed or sutured. A third count is then performed at the time of

skin closure. Mr. Boynton testified that the physician does not take part in the

11

count process, unless the nurse reports that the count is incorrect. If the count is

incorrect, then the physician will take steps to assist in locating the missing sponge.

However, Mr. Boynton testified that if the count is reported as being correct, the

physicians rely upon that count. In this case, Mr. Boynton testified that he

performed three sponge counts with scrub tech, Jessie Velasquez and the counts

were correct. (Transcript CD 6/15/09 at 111:6-134:11.)

The jury also heard similar testimony through both Defendant-physicians,

Dr. Darricau’s expert surgeon, Ruediger Bracht, M.D., and expert nurse, Lynn

Hiatt, R.N. (Transcript CD 6/18/09 at 146:4-202:17; 6/19/09 at 33:18-82:20.)

Plaintiff’s own expert surgeon also agreed that he relies upon the hospital

circulating nurse and scrub tech to perform sponge counts. (Transcript CD

6/16/09 at 268:17-275:4.)

The jury also heard testimony from Dr. Darricau and Dr. Ruediger Bracht

that Dr. Darricau’s care and treatment of the Plaintiff was reasonable and

appropriate. They testified that her performance of the September 1, 2006 surgery

was appropriate and performed in a reasonable manner. (Transcript CD 6/18/09 at

160:13-18 and 6/17/09 at 72:9-86:25.) The jury heard testimony that a surgeon

must necessarily rely on the sponge count process, rather than his or her own

memory of where the sponge may have been placed, or even on a visual inspection

12

of the surgical field. (Transcript CD 6/18/09 at 161:23-170:19 and 6/17/09 at

74:20-78:23.)

Dr. Darricau and Dr. Bracht also testified that Dr. Darricau’s post-operative

care and treatment and subsequent surgery were reasonable and met the standard of

care. (Transcript CD 6/18/09 at 146:4-202:17 and 6/17/09 at 87:1-127:17.)

Therefore, even if Plaintiff’s contention is correct that based upon the

application of res ipsa loquitur, the burden shifted to Dr. Darricau to prove she was

not negligent, Dr. Darricau clearly met that burden. Dr. Darricau presented

significant and substantial evidence that her care was, at all times, reasonable and

appropriate. (Transcript CD 6/17/2009 at 5:13-134:13, 6/18/2009 at 145:15-

202:18, 6/19/2009 at 33:8-82:21, 6/19/2009 at 89:19-125:11. ) Based upon the

evidence presented at trial, a reasonable person could reach the same conclusion

as the jury and find Dr. Darricau was not negligent, and that the sponge was

retained absent surgeon negligence. Therefore, Plaintiff’s Motion for Judgment

Notwithstanding Verdict was properly denied.

3. Application of Captain of the Ship Doctrine did not Entitle Plaintiff to a Judgment Notwithstanding Verdict under the Circumstances of this Case.

Plaintiff next argues that under Ochoa, 212 P.3d at 969, Dr. Darricau had a

“non-delegable duty to remove sponges” and could not shift blame to the hospital

13

staff. Plaintiff’s arguments are based upon the application of the doctrine of

Captain of the Ship. The Captain of the Ship doctrine imposes vicarious liability

on a surgeon for the negligence of hospital employees under the surgeon’s control

and supervision during surgery. Id.; Beadles v. Metayka, 135 Colo. 366, 311 P.2d

711, 714 (1957).

In Ochoa, the Colorado Court of Appeals held that the Captain of the Ship

doctrine is governing law.1 However under Colorado law, the Captain of the

Ship doctrine is only applicable “during surgery” when the “surgeon assumes

supervision and direction of the operating room.” Ochoa at 966; Krane v. Saint

Anthony Hosp. Sys., 738 P.2d 75, 76-77 (Colo.App. 1987); Beadles at 713. It is

not applicable to situations outside of the time in which the surgeon has entered the

operating room and has assumed supervision and direction. See Adams v.

Leidholdt, 195 Colo. 450, 579 P.2d at 618, 620(1978)(surgeon not liable for

nursing negligence which occurred in post-operative period and outside presence

of surgeon); Bernardi v. Community Hospital Assn. 443 P.2d 708, 715 (Colo.

1 The Captain of the Ship doctrine has been widely criticized and rejected by numerous other jurisdictions. See e.g. Harris v. Miller, 438 S.E.2d 731 (N.C. 1994); Lewis v. Physicians Ins. Co., 627 N.W.2d 484 (Wis. 2001); Thomas v. Raleigh Hosp., 358 S.E.2d 222 (W.Va 1987). Throughout trial in this matter, the undersigned counsel objected to application of the Captain of the Ship doctrine in this case.

14

1968)(physician not vicariously liable for negligent injection of antibiotics by

nurse in post-operative period).

Plaintiff asserts that “Ochoa has determined that surgeons have a non-

delegable duty to remove sponges in the first instance” and quotes Ochoa as

holding “a surgeon cannot delegate responsibility for removing sponges from a

patient’s body.” However, Ochoa makes no such holding. See Ochoa at 969.

Rather, Ochoa cites Fields v. Yusuf, 144 Cal.App.4th 1381, 51 Cal.Rpter.3d 277

(Cal.Ct.App. 2006) in support of its holding that under the facts of the case,

Dr. Vered had exclusive control of the sponge. However, it did not expressly

adopt the parenthetical quote from Fields which Plaintiff cites. Therefore, the

quote is merely dicta and not the law in Colorado. Instead, Ochoa held that under

the facts and circumstances of that case, the surgeon, Dr. Vered, was in charge of

the surgery and presumably could direct the nurses and, therefore, he had exclusive

control of the sponge. Ochoa further held that trial court did not abuse its

discretion in applying res ipsa loquitur.

The question of whether a physician has assumed supervision and direction

is a question of fact for the jury. Young v. Carpenter, 694 P.2d 861, 863

(Colo.App. 1984). It is not a question of law. Id. In this case, the jury was

presented with facts that the negligent acts of the nursing staff in failing to properly

15

perform a sponge count in this case may have occurred with the initial sponge

count. Therefore, all subsequent sponge counts would be incorrect. The jury

heard facts that showed the first sponge count occurred at a time in which Dr.

Darricau was not present and had not yet assumed supervision and control of the

nurses. There was no evidence presented proving that the purportedly negligent

sponge count occurred at a time when Dr. Darricau was “in control” of the

operating room. Therefore, the jury could reasonably determine that the Captain of

the Ship doctrine was inapplicable to this case and that Dr. Darricau was not

vicariously liable for the negligent acts of the nurses in performing the sponge

counts. Therefore, when viewed in the light most favorable to Dr. Darricau,

Plaintiff’s Motion for Judgment Notwithstanding Verdict was appropriately

denied.

4. Jury Verdict of No Causation Renders Harmless any Perceived Error Regarding Negligence.

Plaintiff bears the burden under Colorado law of establishing all elements of

her claim. Oliver v. Amity Mut. Irrigation Co., 994 P.2d 495, 994 (Colo.App.

1999). Even if the Court were to accept Plaintiff’s argument that the application of

res ipsa loquitur required this Court to enter a Judgment Notwithstanding Verdict,

such an error is utterly harmless in light of the fact that the jury found no causation.

16

See Dunlap v. Long, 902 P.2d 446, 447 (Colo.App. 1995); Pinell v. McCrary, 849

P.2d 848, 851 (Colo.App. 1992).

5. Plaintiff is not Entitled to a Judgment Notwithstanding Verdict, as she Failed to Meet her Burden to Establish Causation.

Plaintiff bears the burden to establish that the damages were proximately

caused by the negligent acts complained of. Bruckman v. Pena, 487 P.2d 566, 568

(Colo.App. 1971); Stumps v. Gates, 777 F. Supp. 808, 824, aff’d 986 F.2d 1429

(D. Colo. 1991); CJI-Civ. 4th 9:2; CJI-Civ. 4th 3:1. To prove causation in a

negligence case, a plaintiff must prove, by a preponderance of the evidence, i.e.,

“more likely than not”, that the injury would not have occurred but for the

defendant’s alleged negligent conduct. See Kaiser Foundation Health

Plan v. Sharp, 741 P.2d 714, 719 (Colo. 987) (stating that, for liability to be

imposed, Colorado law requires the existence of a causative link between a

plaintiff's injuries and the defendant's negligence to be established by "such facts

and circumstances as would indicate with reasonable probability" that causation

exists).

Plaintiff argues that the “uncontradicted evidence here also established the

sponge left inside Medina was definitely the cause of her infection.” Plaintiff’s

Opening Brief at pp. 24-25. Yet, Plaintiff has cited nothing in the records to

provide a causative link between Dr. Darricau’s negligence and claimed damages.

17

The burden is on the appellant to provide a record justifying reversal and, absent

such a record, the Court of Appeals presumes regularity of the District Court

proceedings. Alessi v. Houge, 689 P.2d 649, 650 (Colo.App. 1984).

At the close of the evidence in this case, the jury found no causation. When

viewing the evidence in the light most favorable to the non-moving party, a

reasonable person could reach the same conclusion as the jury. While Plaintiff

presented substantial evidence regarding her injuries and damages, she presented

no evidence that Dr. Darricau’s negligence was the cause of her claimed injuries.

Therefore, Plaintiff failed in her burden to provide causation. On the other hand,

Dr. Darricau presented evidence through her own testimony, as well as the

testimony of Dr. Bracht, that there was no negligence on her part which was the

proximate cause of Plaintiff’s claimed injuries. The expert testimony that this

injury occurred without negligence by the surgeon supports the jury verdict of no

causation.

“The findings of the trier of fact must be accepted on review unless they are

so clearly erroneous as not to find support in the record.” Machol v. Sancetta, 924

P.2d 1197, 1199 (Colo.App. 1996). If the jury finds that plaintiff failed in her

burden on any one of the elements of a prima facie case of negligence, then the

defendant must prevail. CJI-Civ. 4th 9:2. At trial, the jury found no causation.

18

Viewing the evidence in the light most favorable to Dr. Darricau, Plaintiff’s

Motion for JNOV on the issue of causation was properly denied.

B. THE TRIAL COURT DID NOT ERR WITH REGARD TO THE JURY INSTRUCTIONS BECAUSE THE INSTRUCTIONS GIVEN WERE ACCURATE STATEMENTS OF THE LAW, AND THE COURT’S DECISIONS WERE NOT MANIFESTLY ARBITRARY, UNREASONABLE, OR UNFAIR. 1. Standard of Review; Preservation

In compliance with C.A.R. 28(k), Defendant Darricau does not disagree that

the appropriate standard of review regarding jury instructions is that individual

instructions are reviewed for abuse of discretion, but supplements that statement as

follows:

Trial courts have discretion to determine the form of the jury instructions.

Harris Group, Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo.App. 2009). Absent a

showing that the trial court abused its discretion, its decision of what instructions

to give will not be overturned. Id. A trial court’s ruling on jury instructions is an

abuse of discretion only when its decision is “manifestly arbitrary, unreasonable, or

unfair.” Id., citing Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1251 (Colo. 1994).

Where the jury instructions, as a whole, are comprehensive, correct and fair,

possible technical errors to segregated portions are not grounds for reversal.

Denver City Tramway Co. v Brumley, 51 Colo. 251, 116 P. 1051 (1911).

19

Pursuant to C.R.C.P. 51, a party is required to object to alleged errors in

the instructions before they are given to the jury. Only grounds specified in an

objection shall be considered on appeal. Harris Group, 209 P.3d at 1195. All

other objections are considered waived. Id.; Robinson v. City and County of

Denver, 30 P.3d 677 (Colo.App. 2000). Even if the trial court’s instruction is

found to be erroneous, the erroneous instruction is only reversible when it

prejudices a party’s substantial rights, or if the jury would have probably decided

the case differently if the correct instruction had been given. Harris Group, 209

P.3d at 1195. Therefore, a harmless error standard is applied to a properly

preserved jury instruction. Waneka v. Clyncke, 134 P.3d 492 (Colo.App. 2005)

aff’d 105 P.3d 1072 (Colo. 2007).

Plaintiff failed to provide a statement regarding Preservation as required

under C.A.R. 28(k), failed to properly cite the instructions objected to in her brief,

and failed to properly preserve her objections to the jury instructions at trial under

C.R.C.P. 51.

2. Jury Instructions Regarding Burden of Proof and Res Ipsa Loquitur were Properly Given and Caused No Prejudice to Plaintiff.

As discussed above, the Court in this case determined that res ipsa loquitur

was applicable and instructed the jury accordingly, with Instruction 10. (Record

20

CD p. 2013.) The Court, over Defendant’s objections, also gave instructions

relating to burden of proof and the Captain of the Ship doctrine. (Record CD

Instructions Nos. 3, 9, 13, 14, 15, 16, 22, 30, p. 2006, 2012, 2016-2019, 2025,

2033). These instructions, when taken as a whole with the remaining instructions

given, accurately state the law applicable to this case, and were appropriately

given.

Plaintiff asserts that her tendered and rejected Instruction 1, based upon

3:1/9:17, Ochoa, and Mudd v. Dorr, 574 P.2d 97 (Colo.App. 1997), should have

been given. Plaintiff failed to make a record when tendering that instruction to the

Trial Court. (Transcript CD at 6/22/09 at 66:13-22). Therefore, she has waived

any objections to the Court’s failure to give that instruction.

Plaintiff’s tendered and rejected Instruction 1 misstated the law in Colorado

as discussed above. This non-stock instruction was also difficult to understand as

worded, as it was worded in the negative, making it difficult to comprehend. This

instruction would have clearly created confusion for the jury and was not properly

tendered. Rather, the Trial Court gave Instruction 10, which is more clearly

worded. By giving Instruction 10, the Trial Court has precluded any prejudice

which could have occurred by the refusal of Plaintiff’s tendered and rejected

Instruction 1.

21

Plaintiff argues that the Court erred in giving Instruction 3, claiming that this

instruction, given in combination with Instruction 10, created confusion. However,

Plaintiff ignores the fact that her claims of negligence against Dr. Darricau were

not limited to the retention of the sponge. Plaintiff also presented evidence

through her expert surgeon, Dr. Ronaghan, that Dr. Darricau was negligent in her

post-operative care and treatment of the recurring incision infections which

occurred in the post-operative period and in failing to perform a radiology study

such as an x-ray or ultrasound earlier, thereby creating a delay in diagnosis.

(Transcript CD at 6/16/09 249:9-254:7.) These separate and distinct claims of

negligence by Dr. Darricau warranted that Instruction 3 and Instruction 10 be

given.

3. The Court Properly Rejected Plaintiff’s Ochoa Instruction which Misstated Law.

Plaintiff next asserts that the Trial Court failed to give an instruction she

tendered based upon Ochoa. However, Plaintiff failed to make a record when

tendering that instruction to the Trial Court. (Transcript CD 6/22/09 at 66:13-22.)

Therefore, she has waived any objections to the Trial Court’s failure to give that

instruction.

Plaintiff argues that her tendered and rejected Instruction 5, which stated

“Under the law, surgeons cannot delegate responsibility for removing surgical

22

sponges from a patient’s body” should have been given. However, as discussed

above, this proposed instruction is based upon dicta, and not Colorado law. Had

the Trial Court given the proposed incorrect Ochoa instruction, error would have

clearly occurred.

Plaintiff cannot show that the jury would have decided differently had this

instruction not been given. Therefore, no reversible error exists. Harris Group,

209 P.3d at 1195. Plaintiff is not entitled to a new trial with respect to her tendered

and rejected Instruction 5.

4. The Court Properly Instructed the Jury Regarding Vicarious Liability and Captain of the Ship.

Plaintiff asserts that the Trial Court failed to give her tendered and rejected

Instruction 4 regarding vicarious liability. However, Plaintiff failed to make a

record when tendering that instruction to the Trial Court. (Transcript CD 6/22/09

at 66:13-22.) Therefore, she has waived any objections to the Trial Court’s failure

to give that instruction.

Plaintiff’s tendered and rejected Instruction 4 is based upon the Captain of

the Ship Doctrine. However, Plaintiff’s Instruction 4, is a misstatement of the case

law and evidence presented in this case. The Captain of the Ship Doctrine, a form

of vicarious liability, is only applicable “during surgery” when the “surgeon

assumes supervision and direction of the operating room.” Ochoa, 212 P.3d at

23

966; Krane, 738 P.2d at 76-77 ; Beadles, 311 P.2d at 713-14. Based upon the

evidence in this case as discussed above, it would be improper to instruct the jury

that the nurse and scrub tech were under Dr. Darricau’s control at the time of the

purported negligence in this case. Plaintiff presented no evidence when the

negligent count occurred. Clearly, if the nurse and scrub tech were negligent in

their initial count, a count done at a time before Dr. Darricau assumed control of

the operating room, then Captain of the Ship would not apply.

Plaintiff also objects to Instructions 13, 14 and 22, which all relate to the

Captain of the Ship doctrine or vicarious liability. (Record CD pp. 2016, 2017 and

2025.) However, consistent with Colorado law, Instructions 13, 14 and 22 clearly

set forth Colorado law that the Captain of the Ship could not be applicable during

times Dr. Darricau had not assumed supervision and direction of the operating

room. Hence, Instructions 13, 14 and 22 were properly given and any proposed

instruction regarding vicarious liability, which misstates Colorado law, was

properly rejected.

In light of the claims presented in this case, the instructions given to the jury

were appropriate and did not prejudice the Plaintiff. Therefore, Plaintiff is not

entitled to a new trial with respect to instructions given regarding burden of proof,

res ipsa loquitur, Captain of the Ship, and vicarious liability.

24

5. Jury Instructions Regarding Comparative and Nonparty Negligence were Proper and Caused No Prejudice to Plaintiff.

Plaintiff argues that instructions relating to Dr. Darricau’s affirmative

defense of the comparative negligence of the Plaintiff and nonparty designation of

The Medical Center of Aurora and its employees were given in error. As an initial

matter, Plaintiff has failed to identify which instructions she is objecting to and

failed to preserve the record with respect to those instructions and has therefore

waived any objections thereto.

Plaintiff initially asserts that “there was no evidence Medina in any way

contributed to the sponge being left inside her during the September 1, 2006

surgery.” See Plaintiff’s Opening Brief at p. 30. However, Plaintiff again ignores

the fact that she asserted two separate negligence theories against Dr. Darricau in

this matter. She is also fully aware that the Court ruled that the comparative

negligence related to Plaintiff’s negligent failure to follow her wound care

instructions, a valid defense to Plaintiff’s claim that Dr. Darricau was negligent in

the care and treatment of her recurrent post-operative incision infections.

(Transcript CD 6/22/09 at 51:21-54:1.)

Based upon evidence presented through the Plaintiff and her own witnesses,

the jury could have concluded that Plaintiff was comparatively negligent in failing

to comply with reasonable and appropriate wound care instructions, thus causing

25

some of her own claimed damages. Instructions 20 and 21 were appropriately

given. (Record CD pp. 2024-25.)

Plaintiff next complains that an instruction regarding nonparty negligence of

The Medical Center of Aurora was given. However, an instruction on nonparty

negligence is proper in light of the facts and evidence, which was presented at

length throughout the trial. Defendant Dr. Darricau properly designated The

Medical Center of Aurora and its agents or employees as nonparties at fault.

(Record CD at p. 68-70.) Evidence was presented at trial that the hospital nurse

and scrub tech were responsible for performing the sponge counts. The negligence

of the nurse and scrub tech in failing to do a proper sponge count was therefore

reasonably considered by the jury, especially since the initial sponge count

occurred at a time when Dr. Darricau had not assumed supervision and control of

the operating room. An instruction based upon the defense of the negligence of

nonparties, The Medical Center of Aurora and its employees, was appropriately

given. Plaintiff is not entitled to a new trial with respect to instructions relating to

comparative and nonparty negligence.

26

6. Jury Instructions Regarding Standard of Care and Expert Testimony were Appropriate and Caused No Prejudice to Plaintiff.

Plaintiff argues that Instruction 18, relating to standard of care testimony,

was given in error. Defendant asserts that Plaintiff failed to preserve this objection

at the time of trial. Although Plaintiff’s counsel cites a portion of the record where

she discussed this Instruction based upon Spoor v. Serota, 852 P.2d 1292

(Colo.App. 1992), Plaintiff clearly failed to preserve the objections set forth in her

Opening Brief. Therefore, Plaintiff has waived her objections thereto.

Even if Plaintiff had properly preserved her objections to this instruction on

the grounds that the instruction was an incorrect statement of law, Plaintiff’s

arguments must fail. Plaintiff has ignored the fact that she asserted two separate

negligence theories against Dr. Darricau in this matter. Plaintiff asserted a claim

that Dr. Darricau was negligent with respect to the retained sponge, but she also

asserted a second claim that Dr. Darricau was negligent in the post-operative care

she provided to the Plaintiff, resulting in a delay removing the sponge. There can

be no question that Instruction 18 was appropriate in light of that second claim.

Plaintiff argues that under Mudd “a jury can conclude that the leaving of a

sponge in a surgical patient constitutes surgeon negligence and a breach of the

27

standard of care without the aid of expert testimony.” See Plaintiff’s Opening

Brief at p. 31. However, if a court determines that the evidentiary rule of res ipsa

loquitur applies, a plaintiff will only be relieved of having to present expert

medical testimony to prove that the defendants owed a duty of care to the plaintiff

and breached that duty. Mudd, 574 P.2d at 99. Even though Plaintiff no longer

bore that burden of proof, she still presented expert testimony regarding the

standard of care through her expert surgeon, Dr. Ronaghan. This is not a case

where Plaintiff relied upon res ipsa loquitur and did not present any expert opinion

testimony.

Defendants presented evidence of the standard of care through their own

experts. At the conclusion of the evidence, the jury found in Dr. Darricau’s favor

on all of Plaintiff’s negligence-based claims. Under the circumstances of this case,

Instruction 18 was appropriately given and caused no prejudice to the Plaintiff.

Plaintiff cannot show that the jury would have decided differently had this

instruction not been given. Plaintiff is not entitled to a new trial with respect to

Instruction 18.

7. The Jury Instructions were Proper. The Trial Court did not abuse its discretion in declining to give the

instructions requested by the Plaintiff and in giving the instructions complained of

28

here. The instructions that were given properly informed the jury of the law, as

discussed in this Brief. When the jury instructions properly inform the jury of the

law, there is no abuse of discretion and no reversible error. Therefore, the jury’s

verdict and the Court’s entry of judgment in this case should be affirmed.

C. THE TRIAL COURT APPROPRIATELY PERMITTED DEFENDANTS TO AMEND THEIR ANSWERS.

1. Standard of Review; Preservation Defendant Dr. Darricau agrees that the appropriate standard of review for

amendment of pleadings is abuse of discretion. She does not agree that under the

facts and circumstances of this case, at the time the leave to amend was granted,

the amendment was futile. Therefore, she disagrees that a de novo standard of

review applies.

2. The Trial Court did not Abuse Its Discretion in Permitting Defendants to Amend Their Answers to Add the Affirmative Defense of Release.

Pursuant to C.R.C.P. 15(a), leave to amend pleadings shall be freely given

when justice requires. It is within the Court’s discretion to grant leave to amend a

pleading. Polk v. Dist. Ct., 849 P.2d 23, 25 (Colo. 1993). A motion to amend is

entitled to a lenient examination by the Court. Id. The Court must assess a motion

to amend in light of the totality of the circumstances and balance the need to

amend with the effect of the amendment on the other parties. Id. at 26.

29

Plaintiff initially argues that the Court erred in allowing the Defendants

to amend their Answers to add the defense of Release, because under C.R.S. § 13-

50.5-105(1)(a), settlement of claims against one joint tortfeasor does not release

claims against another tortfeasor. However, Defendants did not contend that the

General Release between Plaintiff and the hospital released them from any direct

liability for their own negligence. (Record CD pp. 298-306.) Rather, the

affirmative defense of Release related to Plaintiff’s claims of respondeat superior

for the negligence of the hospital staff. Therefore, the provisions of C.R.S.

§ 13-50.5-105(1)(a) are inapplicable. Ochoa, 212 P.3d at 971.

Plaintiff also argues that the defense of Release for her respondeat superior

claims was futile, relying on Ochoa and cases cited therein, Colorado

Compensation Auth. v. Jones, 131 P.3d 1074, (Colo.App. 2005) and Dworak v.

Olson Constr. Co., 191 Colo. 161, 551 P.2d 198 (1976). The Court in Ochoa

elected to follow Jones, as the plaintiffs in both cases expressly reserved the right

to sue the employer when resolving the case against the employee. The Court

stated the “language in the settlement agreement evincing an intent to preserve

claims against Dr. Vered should be given effect.” Ochoa at 968.

Here, it is undisputed that the final General Release document that Plaintiff

executed in this case failed to reserve her rights to sue the Defendant-physicians.

30

(Record CD pp. 1872-73.) An unconditional release of an employee that does not

reserve the releasor’s right to proceed against the employer is a release of the

employer based upon a theory of vicarious liability. See Restatements (Second ) of

Agency § 217A (1958). See also Arnold v. Colo. State Hosp., 910 P.2d 104, 107-8

(Colo.App. 1995). Although the Court in Ochoa declined to follow Arnold, it is

still good law in Colorado.

Plaintiff has not shown that she has been harmed by the Court’s grant of

leave to amend the answer. The grant or denial of a leave to amend an answer is

not reversible when there has been no prejudice shown. Browns v. Lutin, 16 Colo.

App 263, 64 P. 674, 674 (1901); Denver Consol. Tramway Co. v. Riley, 14 Colo.

App. 132, 59 P. 476, 477 (1899).

Ultimately, the Release was removed from the jury’s consideration and the

jury was instructed to disregard that evidence. (Transcript CD 6/22/09 at 82:7-17.)

It is presumed that a jury follows the Court’s instructions. People v. Bass, 155

P.3d 547, 552 (Colo.App 2006); People v. Sandoval, 709 P.2d 90, 92 (Colo.App

1985). No jury instruction was given to Defendant’s affirmative defense of

Release, and the jury did not consider that affirmative defense. As Plaintiff has

failed to show any prejudice by the Court’s Order permitting Defendants to add the

affirmative defense of Release, the judgment should not be overturned.

31

D. EVIDENCE PRESENTED TO THE JURY AT TRIAL REGARDING SETTLEMENT DOES NOT ENTITLE PLAINTIFF TO A NEW TRIAL. 1. Standard of Review; Preservation

Defendant Dr. Darricau agrees that the appropriate standard of review for

admission of evidence is abuse of discretion. See Hall v. Frankel, 190 P.3d 852,

858 (Colo.App. 2008) cert. denied. The trial court’s ruling will not be overturned

unless it is manifestly arbitrary, unreasonable, or unfair. Id.

Defendant Dr. Darricau asserts that although Plaintiff included a statement

regarding Preservation, as required under C.A.R. 28(k), Plaintiff failed to make an

objection contemporaneous to the admission of the settlement document at trial.

2. Plaintiff Failed to Make a Contemporaneous Objection to the Admission of the Settlement Documents.

To preserve an objection to admission of evidence at trial, a timely objection

must appear on the trial court record, stating a specific ground for objecting.

American Family Mutual Ins. Co. v. Dewitt, 216 P.3d 60, 65 (Colo.App. 2008).

Error may not be predicated upon a ruling which admits or excludes evidence

unless ... a timely objection or motion to strike appears of record, stating the

specific ground of objection." C.R.E. 103(a)(1). Requiring a specific objection

fulfills two important goals: judges can rule upon the objection in an informed and

intelligent way; and opposing counsel can propose alternatives that address the

32

concerns raised by the objection. Hart v. Schwab, 990 P.2d 1131, 1135 (Colo.App.

1999). As Plaintiff failed to make a timely and specific objection to the admission

of Exhibit M, Plaintiff cannot now appeal the admission of that document.

3. Evidence Regarding Settlement with The Medical Center of Aurora and its Agents was Admissible under Greenemeier and Caused No Prejudice to Plaintiff.

During discovery in this matter, the Defendants were made aware that, prior

to filing this action, Plaintiff asserted and settled a claim against The Medical

Center of Aurora and its agents, servants, employees, successors and assigns

relating to the same set of facts relevant to this case, i.e., the retention of the

surgical sponge in the September 1, 2006 surgery at TMCA. (Record CD

pp. 1872-73.) On or about May 14, 2008, Defendant Dr. Darricau filed a

Designation of Nonparties at Fault, naming as nonparties The Medical Center of

Aurora, by and through its employees and agents, including but not limited to

Brent Boynton, R.N. and Jessie Velasquez. (Record CD pp. 68-70.)

Plaintiff avers that permitting evidence of settlement was immaterial and

prejudicial. However, in Greenemeier v. Spencer, 719 P.2d 710 (Colo. 1986), the

Colorado Supreme Court adopted a rule requiring trial courts to bring to the jurors

attention the fact of settlement between a settling party and plaintiffs. Landsberg

v. Hutsell, 837 P.2d 205, 209 (Colo.App. 1992). The rationale for this rule was to

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make the jury “aware that whatever verdict they return will be apportioned among

defendants and settling parties pursuant to the requirements of the law.” Id .at 209.

Since the decision in Greenemeier, the Colorado General Assembly adopted

C.R.S. § 13-21-111.5, which limits a defendant’s liability to that percentage caused

by his own negligence or fault. While this legislation diminished the compelling

problems which prompted the Greenemeier decision, it has not extinguished them.

Landsberg, 837 P.2d at 209. The purpose of our current statutory scheme “is to

provide injury victims full compensation, not excess compensation.” Weeks v. City

of Colorado Springs, 928 P.2d 1346, 1349 (Colo.App. 1996). A plaintiff cannot

recover twice for the same injury and, therefore, to the extent that Plaintiff in this

case cannot separate or distinguish the damages caused by each alleged tortfeasor,

a duplicative recovery cannot be allowed. See Coleman v. United Fire and Cas.

Co., 767 P.2d 761, 764 (Colo.App. 1988).

The provisions of the Health Care Availability Act also support giving a

Greenemeier instruction in this lawsuit involving the allegations of negligent care

and treatment by The Medical Center of Aurora and its employees. Whenever a

plaintiff enters into a settlement in a case asserting medical negligence, the

statutory caps as set forth in the Health Care Availability Act, C.R.S. § 13-64-101,

et seq. must be applied to any sums awarded by the jury as well as any

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amounts obtained through settlement with other defendants. See Garhart ex rel.

Tinsman v. Columbia/HealthOne, L.L.C., 95 P.3d 571, 590-91(Colo. 2004). Thus,

under the rationale set forth in Greenemeier and followed in Landsberg, it was

appropriate for the jury to be informed of the settlement with The Medical Center

of Aurora in this case.

The jury was given a Greenemeier instruction at trial. See Jury Instruction

28. (Record CD p. 2031.) In her Opening Brief, Plaintiff makes no assertion that a

Greenemeier instruction was inappropriately given, nor can she, as it is the law in

Colorado.

Therefore, evidence which merely sets forth the fact of settlement, i.e., the

settlement agreement, caused no prejudice to the Plaintiff. The jury would have

been informed of the fact of settlement, even in the absence of the introduction of

the settlement agreement as evidence. Therefore, admission of the settlement

agreement is harmless, even when ultimately withdrawn from the jury’s

consideration. See Burt v. Beautiful Savior Lutheran Church of Broomfield, 809

P.2d 1064, 1070 (Colo.App. 1990).

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4. Evidence Regarding the Settlement Agreement was Admissible to Show the Fact of Settlement and was Relevant to a Factual Question of Plaintiff’s Intent with Respect to Release.

On or about February 26, 2009, Defendants Dr. Darricau and Dr. Keeler

filed a joint Motion for Partial Summary Judgment. In part, Defendants argued

that Plaintiff had released TMCA employees without reserving her rights to

proceed against the surgeons for vicarious liability under the Captain of the Ship

doctrine and, therefore, Plaintiff should not be able to proceed on a theory of

vicarious liability. (Record CD pp. 345-381.) Plaintiff then filed a Cross-Motion

for Partial Summary Judgment on March 16, 2009 arguing that summary judgment

should be granted in her favor regarding the Defendants’ affirmative defense of

Release. (Record CD pp. 447-450.) Defendants argued that a genuine issue of

material fact existed as to whether Plaintiff intended to reserve her rights to release

only TMCA nurses or whether she also intended to release the surgeons by failing

to expressly reserve her rights against them in the final General Release. (Record

CD pp. 462-480 and 481-511.)

In an Order dated May 20, 2009, this Court held that “factual questions

remained regarding the application of the release” and denied Summary Judgment

Motions filed by all parties. (Record CD pp. 2126-2130.)

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At trial, Defendants sought to present evidence regarding Plaintiff’s intent

with respect to release of her claims. Therefore, Plaintiff was cross-examined

regarding the language of the final Release and Settlement Agreement,

Defendants’ Trial Exhibit M.2 (Record CD pp. 1872-73.) Specifically, she was

questioned regarding information that the Release did not expressly reserve her

right to sue the Defendant-physicians.

Plaintiff then presented evidence regarding her intent with respect to release

of her claims by introducing the Agreement to Settlement drafted by the Judicial

Arbiter Group at the time of mediation, Plaintiff’s Trial Exhibit 47.3 (Record CD

pp. 1844-45.) Plaintiff provided evidence in her own favor and had full and fair

opportunity to discuss both documents. Plaintiff testified that she only intended to

release TMCA and its employees.

After the conclusion of Defendants’ case, the Court held that the issue

regarding Plaintiff’s intent with respect to release of her claims was

uncontroverted. Thereafter, the Court withdrew Defendants’ Trial Exhibit M and

Plaintiff’s Trial Exhibit 47 from the jury’s consideration. The Court also instructed

the jury to disregard those exhibits. (Transcript CD 6/22/09 at 82:7-17.)

2 The amount of settlement was redacted from this document.

3 The amount of settlement was redacted from this document.

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Plaintiff now argues that Defendants’ Trial Exhibit M and Plaintiff’s Trial

Exhibit 47 should never have been admitted as evidence under C.R.E. 401, 402 and

403. Defendants’ Trial Exhibit M was relevant and admissible with respect to

Plaintiff’s intent and Dr. Darricau asserts that based upon the Plaintiff’s testimony,

the jury could have clearly determined Plaintiff did not specifically intend to

reserve the right to sue the physicians and, as an issue of fact, should have

proceeded to the jury for determination. However, the fact of settlement clearly

remained relevant and admissible under Greenemeier. Therefore, admission of the

documents did not prejudice the Plaintiff. See Burt, 809 P.2d at 1070 (no prejudice

as result of evidence introduced and ultimately withdrawn from jury’s

consideration).

Therefore, there was no abuse of discretion by the Trial Court in admitting

the evidence of the Release.

E. THIS COURT SHOULD NOT CONSIDER ISSUES RAISED BY PLAINTIFF REGARDING MEDICAL BILLS. 1. Standard of Review; Preservation

In compliance with C.A.R. 28(k), Defendant Darricau agrees that the

appropriate standard of review regarding admission of evidence is abuse of

discretion.

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2. The Trial Court’s Ruling was Harmless Error.

Plaintiff has not asserted that the Trial Court’s admission of both the amount

of medical bills and amounts actually paid as evidence of her damages was

reversible error. She does not claim she is entitled to a new trial due to the

admission of that evidence. She does not even claim she was prejudiced by the

Trial Court ruling in this regard, nor can she, as the Trial Court’s decision to admit

both amounts is harmless error.

At trial, the jury found that Plaintiff had suffered damages but found no

negligence and no causation. As the jury returned Verdict Form A, they did not

need to reach a determination of the amount of damages or type of damages

suffered by Plaintiff. See Gray v. Houlton, 671 P.2d 443, 444 (Colo.App. 1983)

(holding that because the jury found no liability on defendants’ part, the issue of

damages became irrelevant and moot and any potential error was harmless). See

also Dunlap v. Long, 902 P.2d 446, 448 (Colo.App. 1995)(“[s]everal Colorado

decisions stand for the proposition that a jury determination that a defendant is not

liable renders harmless any error that might have occurred with respect to the issue

of plaintiff’s alleged damages.”) (citations omitted). Harmless error does not

require reversal. See Martin v. Minnard, 862 P.2d 1014, 1018 (Colo.App. 1993).

For an error to require reversal, it must have had some effect on the proceeding

39

that prejudiced the appealing party. Poudre Valley Rural Elec. Ass’n. v. City of

Loveland, 807 P.2d 547, 557 (Colo. 1991).

3. This Court should not Render Advisory Opinion Regarding Potential Future Rulings of a Trial Court.

As noted above, Plaintiff does not claim that the Trial Court’s evidentiary

rulings resulted in reversible error and does not seek a new trial on these grounds.

Rather, Plaintiff seeks a ruling from this Court barring evidence of the amount of

medical bills actually paid “on a new trial.” However, since there has been no

ruling that a new trial is warranted, such a ruling would be merely an advisory

opinion, speculating on what evidence may or may not be presented in the future.

A court has no jurisdiction to render an advisory opinion on a controversy

that is not yet ripe, or to decide a matter based on speculative, hypothetical or

contingent set of facts, or on the mere possibility of a future controversy. County

Road Users Ass'n v. Board of County Com'rs of County of Archuleta, 987 P.2d

861, 864 (Colo.App. 1998). See also Burcham v. Burcham, 1 P.3d 756, 757

(Colo.App. 2000). This Court should therefore deny Plaintiff’s request for

consideration of an issue that is speculative of a future issue that may not even

arise.

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4. The Reasonable Value of Medical Expenses is an Issue for the Trier of Fact to Determine.

The amount of damages is generally a question of fact, the resolution of

which is vested in the finder of fact. Great Western Sugar Co. v. Northern Natural

Gas Co., 661 P.2d 684, 696 (Colo.App. 1982). The proper measure of damages is

the amount which shall make the injured party whole. Harsh v. Cure Feeders,

L.L.C., 116 P.3d 1286, 1284 (Colo.App. 2005). Plaintiffs are only entitled to

recover damages that will reasonably compensate them for their actual losses.

Great West Food Packers, Inc. v. Longmont Foods Co., Inc., 636 P.2d 1331, 1333

(Colo.App. 1981).

Plaintiff argues that the Trial Court’s ruling that both amounts paid and

amounts billed were admissible at trial constituted reversible error under Cosgrove

v. Wal-Mart Stores, Inc., 2010 WL 2521744 (Colo.App. 2010). However, the

Cosgrove case was not ruled upon by the Court of Appeals until June, 2010, and

therefore, could not have been considered by the trial court.

Plaintiff also cited Trucker v. Volunteers of Am., 211 P.3d 708 (Colo.App.

2008) and another Court of Appeals unpublished decision, Steidinger v. Hilton,

Colorado Court of Appeals, No. 07CA0847, August 28, 2008, in support of the

contention that the Trial Court should not reduce the damages award by amounts

actually paid by the Plaintiff’s health insurer. However, neither case precluded the

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Defendants from presenting evidence of the amounts actually paid to the health

care providers as evidence of the reasonable value of the medical expenses.

The correct measure of compensation for medical expenses is the necessary

and reasonable value of the services rendered. Palmer Park Gardens, Inc. v.

Potter, 162 Colo. 178, 425 P.2d 268 (1967); Steiger v. Burroughs, 878 P.2d 131

(Colo.App. 1994). The amount of medical expenses actually paid is clearly

evidence of their reasonable value. Palmer Park, 425 P.2d at 272; Steiger, 878

P.2d at 131. Therefore, it was not an abuse of discretion for the Court to admit

both amounts billed and amounts paid.

F. THE TRIAL COURT APPROPRIATELY AWARDED COSTS TO DR. DARRICAU AS THE PREVAILING PARTY. 1. Standard of Review; Preservation

Plaintiff failed to include a statement regarding the Standard for Appellate

Review of an award of costs as required under C.A.R. 28(k).

2. Plaintiff Presented No Argument in Support of Her Contention that Costs were Improperly Awarded.

Plaintiff’s Brief is devoid of any argument or authority for her contention

that the Trial Court improperly awarded costs to Dr. Darricau. When an appellant

fails to present an issue without supporting argument or authority, the Court of

Appeals may refuse to consider that issue. Mitchell v. Ryder, 20 P.3d 1229, 1234

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(Colo.App. 2000), reh’g denied and cert. granted. Failure of the appellant to

provide supporting authority for contentions of error asserted on appeal will result

in affirmation of judgment. Beil v. Alcott, 876 P.2d 60, 64 (Colo.App. 1993), cert.

denied.

C.R.C.P. 54(d) specifically mandates that “costs shall be allowed as a matter

of course to the prevailing party.” C.R.S. § 13-16-105 also provides authority for

the award of costs, stating that when a plaintiff has a verdict passed against her,

“then the defendant shall have judgment to recover costs against the plaintiff.”

Costs which are recoverable are outlined in C.R.S. § 13-16-122 and expounded on

by Colorado case law. The award of costs is within the sound discretion of the trial

court. Mullins v. Kessler, 83 P.3d 1203 (Colo.App. 2003). However, C.R.C.P.

54(d) establishes the presumption that the costs are to be awarded and some reason

must appear for penalizing the prevailing party if costs are to be denied. True

Temper Corp. v. CF&I Steel Corp., 601 F.2d 495 (10th Cir. 1979).

As the prevailing party, pursuant to C.R.C.P. 54(d), Dr. Darricau was

entitled to an award of costs. Defendant Dr. Darricau submitted her bill of costs

on July 14, 2009. (Record CD pp. 2230-31.) (Record CD pp. 1306-14.) Plaintiff

filed her objection to those costs. The Trial Court appropriately considered

Plaintiff’s objections and ruled on the costs in an Order dated October 31, 2009.

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(Record CD pp. 2230-31.) Plaintiff cannot complain about the Trial Court’s

award of costs simply because she was unsuccessful at trial.

While the Trial Court awarded costs to Dr. Darricau, Plaintiff has never paid

them. Plaintiff filed bankruptcy on or about December 23, 2009. See In re

Michelle Medina, U.S. Bankruptcy Court No 09-37347-HRT (D.Colo.). She

moved the Court to require the trustee to abandon the personal injury claim.

See Plaintiff –Appellant’s Response in Opposition to Defendant –Appellee, Karen

Darricau, M.D.’s Motion to Dismiss and Exhibits thereto. (Record CD pp. 1485-

1508.) She was granted a discharge in bankruptcy on April 15, 2010. See In re

Michelle Medina, U.S. Bankruptcy Court No 09-37347-HRT (D.Colo.). As

Plaintiff has not paid any of the costs awarded to Dr. Darricau, and will never be

required to pay those costs due to her bankruptcy discharge, she has suffered no

prejudice, and her arguments regarding the award of costs is moot.

VI. CONCLUSION

The evidence, viewed in the light most favorable to Dr. Darricau, supported

the jury’s verdict regarding both negligence and causation. Therefore, Plaintiff

was not entitled to a judgment notwithstanding verdict and Plaintiff’s Motion was

properly denied. The jury instructions given in this case were reasonable and

appropriate, in light of the evidence and issues presented during the course of trial.

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The Trial Court properly instructed the jury. The Trial Court also appropriately

permitted Defendant Dr. Darricau to amend her Answer. Finally, as the jury was

appropriately informed of the fact of settlement with The Medical Center of

Aurora and its employees under Greenemeier, evidence of the redacted settlement

documents presented to the jury, and later removed from the jury’s consideration,

did not prejudice the Plaintiff . Therefore, Defendant Dr. Darricau respectfully

requests that Plaintiff’s Appeal be denied.

SIGNED AND DATED at Denver, Colorado this 29th day of September,

2010.

COOPER & CLOUGH, P.C. s/ Deanne C. McClung _________________________________

Deanne C. McClung, #27451 1512 Larimer Street, Suite 600 Denver, Colorado 80202-1621 (303) 607-0077

Attorneys for Defendants-Appellee, Karen Darricau, M.D.

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CERTIFICATE OF SERVICE

The undersigned certifies that on this 29th day of September, 2010 a true

and correct copy of the foregoing DEFENDANT-APPELLEE, KAREN DARRICAU, M.D.’S ANSWER BRIEF was hand delivered as well as electronically filed with the Court of Appeals, and served electronically on the following parties via LexisNexis: Douglas J. Perko, Esq. DiGIACOMO, JAGGERS & PERKO, LLP 5400 Ward Road, Bldg. III, Suite 200 Arvada, Colorado 80002 Jack Mann, Esq. Julie E. Haines, Esq. KENNEDY CHILDS & FOGG PC 1050 17th Street, Suite 2500 Denver, Colorado 80265 Clerk of the Court ARAPAHOE COUNTY DISTRICT COURT 7325 South Potomac Street Centennial, Colorado 80112 Corine Carter

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